Upper Tribunal (Immigration and asylum chamber), 2021-03-05, [2021] UKUT 95 (IAC) (Juba (s. 94B: access to lawyers))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Pitt, Upper Tribunal Judge Blum |
| Status | Reported |
| Date | 05 March 2021 |
| Published date | 20 April 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | s. 94B: access to lawyers |
| Hearing Date | 01 December 2020 |
| Appeal Number | [2021] UKUT 95 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Juba (s. 94B: access to lawyers) [2021] UKUT 0095 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House by Skype |
Decision & Reasons Promulgated |
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On 1 December 2020 |
5 March 2021 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE PITT
UPPER TRIBUNAL JUDGE BLUM
Between
ABIODUN JUBA
(ANONYMITY ORDER NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr M Westgate QC and Ms Marisa Cohen, instructed by
Wilson Law Limited
For the respondent: Mr S Kovats, QC, instructed by the Government Legal Department
Nationality, Immigration and Asylum Act 2002, s. 94B: Access to lawyers
(1) In the light of Kiarie and Byndloss [2017] UKSC 42, the first question to be answered by the First-tier Tribunal in an appeal involving a claim that has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 is whether the appellant’s removal from the United Kingdom pursuant to the certificate has deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers (AJ (s.94B: Kiarie and Byndloss questions) [2018] UKUT 115 (IAC)).
(2) The task for the First-tier Tribunal in answering that question is fact and context-specific. The Tribunal must, in particular, determine whether the facts demonstrate the kind of inconvenience or difficulty that is inherent in the appellant being outside the United Kingdom; or whether there has been, or will be, an actual impediment in the taking of instructions and receiving of advice.
(3) There may be circumstances where, at some point before the hearing is due to take place, it will be evident that the appellant’s legal adviser is simply not in a position to mount an effective case, owing to the appellant being outside the United Kingdom. In such circumstances, it would manifestly be wrong to undertake the hearing.
(4) The first question does not, however, necessarily have to be answered by the Tribunal before the start of any hearing of the appeal. Where the position is not clear cut, it will be a matter for the Tribunal to decide whether it addresses the first question after the hearing has taken place. Matters may arise during that hearing which show the question falls to be answered in favour of the appellant. In other cases, the answer may fall to be answered in the negative, once the hearing has occurred. For example, the oral evidence may disclose that an issue upon which it might have been thought the legal adviser was without relevant instructions is not, in fact, relevant to the outcome; or that what might otherwise have been thought to have been a “gap” in the adviser’s instructions is not of such a nature.
Nationality, Immigration and Asylum Act 2002, s. 117C(4) and s. 117C(6)
(5) It is unnecessary to “read down” s. 117C(4) in order to avoid a breach of Article 14 of the ECHR because, inter alia, the case-specific factors said to support any discrimination are relevant to the s. 117C(6) exercise, which requires a more nuanced approach and a collective examination of all relevant matters.
(6) Adverse credibility findings and the fact that an individual was not born in the United Kingdom do not obviate the requirement to apply the key principle in Maslov v Austria [2009] INLR 47, as explained in CI (Nigeria) v SSHD [2019] EWCA Civ 2027
DECISION AND REASONS ON ERROR OF LAW
A. INTRODUCTION AND BACKGROUND
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Upper Tribunal Judge Pitt has substantially contributed to the writing of this decision. It concerns an appeal against a decision of the respondent dated 14 April 2020, which refused the appellant’s Article 8 ECHR claim. The appellant brought that claim in the context of a deportation order made against him on 3 March 2015.
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The appellant’s personal and immigration history has already been set out in some detail by the First-tier Tribunal and Upper Tribunal in previous decisions but it is expedient to provide some of that history again here.
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The appellant was born in Nigeria on 17 December 1987. He came to the UK with his mother, Lovett Juba, in 1989 when he was just under two years’ old. Having come to the UK on a visitor visa, the appellant’s mother overstayed and the family remained here for an extensive period of time without leave. In due course, however, on 8 October 2009, the appellant, his mother and his sister, Adetoun, were granted indefinite leave to remain (ILR).
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T he appellant began committing criminal offences in 2003 when he received a warning for taking a conveyance without authority. Further offences of possession of cannabis occurred in 2005, 2007, 2008, and 2009 for which the appellant received fines of between £66 and £80. An offence of possession of cannabis in 2008 led to a community order which the appellant breached.
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On 25 November 2014, at Croydon Crown Court, the appellant was convicted of child abduction and sentenced to eighteen months’ imprisonment. A Sexual Offences Prevention Order was made for a five year term.
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This offence led to the respondent commencing deportation action against the appellant. In response to deportation action, on 15 January 2015, the appellant made an Article 8 ECHR claim. The respondent refused that claim on 13 February 2015 and certified it under section 94B of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The section 94B certificate permitted the respondent to remove the appellant to Nigeria pending the outcome of an appeal against his Article 8 ECHR claim.
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On 3 March 2015 the respondent made a deportation order against the appellant. On the same day, the Upper Tribunal refused permission to apply for a judicial review of the s.94B certificate. Permission to appeal to the Court of Appeal was refused as was a renewed application. On 28 July 2015 the appellant was deported to Nigeria.
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On 14 August 2015, the appellant lodged an appeal from outside the United Kingdom, against the refusal of his human rights claim. The appeal was heard by the First-tier Tribunal on 19 May 2017. In a decision issued on 31 May 2017, the First-tier Tribunal dismissed the appeal. The appellant was represented in those proceedings by Cleveland Law Limited and the First-tier Tribunal heard oral evidence from the appellant’s mother and father. No provision was made for the appellant to participate in the hearing.
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With the assistance of new legal representatives, Wilson Solicitors LLP, the appellant appealed against the decision of First-tier Tribunal. The Upper Tribunal found an error of law in the First-tier Tribunal’s decision and set it aside to be remade in the First-tier Tribunal. The Upper Tribunal decision was reported as AJ (Section 94B; Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC); [2018] Imm AR 976 and identified that the First-tier Tribunal erred in failing to assess whether the appeal could be determined without the appellant being physically present in the UK.
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The appeal then came before the First-tier Tribunal again on 11 and 12 February 2020 before a three-person panel, including its President. As before us, the appellant was represented by Mr Westgate and the respondent by Mr Kovats. The appellant participated in the proceedings, including giving live evidence, via a video link from the British High Commission in Lagos. The panel also heard evidence in person from the appellant’s mother, Lovett Juba. In the decision issued on 14 April 2020, the First-tier Tribunal concluded that there had been an effective hearing and that the appellant could not show that his Article 8 ECHR rights were breached by deportation and the appeal was dismissed.
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The appellant appealed again against the decision of the First-tier Tribunal panel. He was granted permission to appeal by the Upper Tribunal on 17 August 2020. Thus the matter came before us at a hearing on 1 December 2020.
B. DECISION OF THE FIRST-TIER TRIBUNAL
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The First-tier Tribunal considered first whether the appeal was effective where the appellant remained abroad. The panel concluded, for the reasons set out in paragraphs 18 to 28 of the decision, that the appellant had been afforded “full opportunity to instruct and receive advice from his UK lawyers”. The First-tier Tribunal found in paragraphs 29 to 32 that the appellant’s ability to produce expert and other professional evidence was not impaired. In paragraphs 33 to 39 the panel found that the appellant had been able to participate effectively in the hearing and that there had been a fair disposal of the appeal notwithstanding his being in Nigeria.
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The appellant’s oral evidence was recorded by the First-tier Tribunal in paragraphs 40 to 60 of the decision. The evidence of the appellant’s mother was set out in paragraphs 61 to 75 of the decision. The First-tier Tribunal referred to the legal framework within which the evidence had to be considered in paragraphs 76 to 79.
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The First-tier Tribunal then conducted an analysis of whether the evidence showed that the exception to deportation set out in section...
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